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Spokane, Washington  Est. May 19, 1883

Racist provisions on home deeds can’t be removed by county officials, court commissioner rules

Alex May poses in his South Hill home in this photo from March. He is trying to clear the home's deed of a racial covenant barring anybody who isn't white from purchasing the house. The covenant is no longer legally enforceable, but May still wants it cleared. (Tyler Tjomsland / The Spokesman-Review)

Spokane County does not have the authority to remove racist provisions from home deeds and titles, even if they’re illegal and void, a Superior Court acting judge ruled Friday.

Spokane County Superior Court Senior Court Commissioner Steven Grovdahl agreed with the arguments made by Auditor Vicky Dalton and Dan Catt, a deputy prosecuting attorney with the county, who said that as auditor, Dalton is not allowed by law to alter records in such a manner.

Attorneys for Alex May, who owns a home in Spokane’s Comstock Neighborhood and wants to remove the racist language from its deed and title, said Grovdahl’s ruling was “the wrong result.”

At the Friday morning hearing, Catt told Grovdahl that the county agreed that the covenants barring anyone who isn’t white from living there were “offensive and repugnant,” but that it was powerless.

“There’s no question that the provision is void. There’s no question that the Legislature intended to remove that type of repugnant, restrictive covenant from deeds,” Catt said. “The issue here is what can be done on those records. That’s the issue.”

Catt said the auditor’s responsibility was to preserve the “archival, historical” chain of records attached to all properties.

Grovdahl agreed, noting that the state law does allow a court to order an auditor to “strike” the provision, but does not specify a “remedy” beyond that. He added that he couldn’t order the auditor to do action beyond her statutory obligations.

After the hearing, Dalton said she was pleased with the ruling. “It clearly follows the intent of the law,” she said. “It is what I hoped.”

May was not at the hearing, and his legal team said they weren’t sure if he wanted to appeal. Regardless, they disagreed with Grovdahl’s ruling. May said he wasn’t sure about an appeal, and still needed to speak with Eichstaedt.

“We just didn’t get the remedy we wanted,” said Connor Jepson, a Gonzaga University law student who is working on May’s case with Rick Eichstaedt, who runs a Gonzaga law clinic, and Brad Lyman, another law school student, on the case. “I think it was the wrong result.”

Jepson, who argued the case, tried to convince Grovdal that the “plain language” of the law was difficult to misinterpret. The law allows a court to “issue an order striking the void provisions from the public records and eliminating the void provisions from the title or lease of the property.”

Pointing to the word “eliminating,” he said the intent of the law was clear: the racist covenant should be fully removed from the home’s deed and title, not buried in a chain of paperwork.

“This had been made a lot more complicated than it needs to be,” he said.

After the hearing, Eichstaedt suggested an appeal would happen, and also focused on the law’s use of the word “eliminating.”

“I think it’s disturbing that the intent of the Legislature was ignored,” he said. “‘Eliminating’ was ignored.”

May’s home was built in 1954 as part of a new housing development near Comstock Park. The underlying property that carries the covenant currently has 37 homes on it – all of which still carry the invalid and unenforceable racist restrictions. According to research by local historian Logan Camporeale, the neighborhood has eight historic subdivisions with similar restrictions, which contain 474 homes that still have the racial covenants attached to their deeds.

In 1948, the Supreme Court ruled that racist covenants could not be enforced. Twenty years later in 1968, Congress passed the Fair Housing Act, which outlawed housing discrimination based on “race, color, religion, or national origin.” The following year, a Washington state law basically reaffirmed the federal law, which made the covenants void.

Washington law states that the “owner, occupant, or tenant of the property” who has a voided covenant “may cause the provision to be stricken from the public records.” The 1987 law said that the “continued existence of these covenants and restrictions is repugnant to many property owners and diminishes the free enjoyment of their property.” The “intent” of the law was to “allow property owners to remove all remnants of discrimination from their deeds.”

The law has been updated numerous times over the years, most recently in 2018, when lawmakers amended it, allowing a county auditor to act without a court order.

Dalton, who helped craft the 2018 update to the law, was ready to move on from Friday’s ruling, and pointed to a new feature on the county’s website that allows homeowners to “strike racially restrictive covenants from documents affecting the title of their properties,” an action allowed under the 2018 update.

Just one Spokane homeowner has used the restrictive covenant modification – a Comstock homeowner on 40th Avenue. By comparison, 89 homeowners in Pierce County have used the new rules to amend their titles.